The Vegetation Management Framework Amendment Bill 2013, introduced to Parliament on 20 March 2013, contains a suite of reforms aimed at streamlining Queensland's vegetation management framework (consisting of the Vegetation Management Act 1999, the Sustainable Planning Act 2009, and their regulations).
Partner Sarah Persijn and associate Gemma Ayriss outline the changes proposed by the Bill, which are set to simplify the approvals process for vegetation clearing across Queensland.
The key reforms introduced by the Vegetation Management Framework Amendment Bill 2013 include:
- introducing new clearing purposes under the Vegetation Management Act 1999 for necessary environmental clearing, high value agriculture clearing and irrigated high value agriculture clearing;
- removing high value regrowth regulations from freehold and indigenous land;
- creating a new head of power under the Vegetation Management Act to enable the Minister to create self-assessable vegetation clearing codes;
- simplifying State-wide vegetation maps; and
- introducing changes to enforcement, investigation and offence provisions under the Vegetation Management Act.
New clearing purposes
The Bill proposes to amend section 22A of the Vegetation Management Act by introducing three new clearing purposes:
- Necessary environmental clearing
- High value agriculture clearing
- Irrigated high value agriculture clearing
'Necessary environmental clearing' is defined to mean clearing of vegetation that is necessary to:
- restore the ecological and environmental condition of land (for instance, stabilising banks of watercourses, works to rehabilitate eroded areas, works to prevent erosion of land or for ecological fire management);
- divert existing natural channels in a way that replicates the existing form of the natural channels;
- prepare for the likelihood of a natural disaster (for example, removing silt to mitigate flooding); and
- remove contaminants from land.
'High value agriculture clearing' means clearing carried out to establish, cultivate and harvest crops, other than clearing for grazing activities or plantation forestry. It covers clearing for annual and perennial horticulture and broadacre cropping, but does not include clearing to establish and cultivate native or introduced pastures for the grazing of livestock, or to establish plantation forestry.
'Irrigated high value agriculture' means clearing carried out to establish, cultivate and harvest crops or pasture, other than clearing for plantation forestry, that will be supplied with water by artificial means. It includes clearing for annual and perennial horticulture and broadacre cropping, in addition to pasture (for example, pasture-based dairy farms), which requires irrigation. Again, plantation forestry is specifically excluded.
The proposed amendments will expand the range of circumstances in which an application can be made for a development permit for vegetation clearing.
If a vegetation clearing application is made for high value agriculture clearing or irrigated high value agriculture clearing, it must be accompanied by a development plan which includes information about, among other things:
- the extent and location of the proposed clearing;
- particulars of the clearing, including when the clearing is expected to be completed;
- evidence that the land is suitable for agriculture and that there is no suitable alternative site on the land for the clearing;
- details about how adverse impacts of the clearing will be minimised or mitigated; and
- for activities related to the clearing, details of a business plan showing information about the viability of the activities.
It will be necessary to prove to the Minister that, along with other criteria, the clearing is likely to be economically viable and is limited to the extent necessary to establish and cultivate the crops, and that the land is suitable for establishing, cultivating and harvesting the crops to which the clearing relates.
Removal of high value regrowth regulations
The Bill will introduce new provisions into the Vegetation Management Act to remove high value regrowth vegetation regulations from freehold and indigenous land.
The starting point is the new definition of 'high value regrowth vegetation':
- on a lease issued under the Land Act 1994 for agriculture or grazing purposes; and
- in an area that has not been cleared since 31 December 1989 that is—
- an endangered regional ecosystem; or
- an of concern regional ecosystem; or
- a least concern regional ecosystem."
The definition confines high value regrowth vegetation to leasehold land for agricultural or grazing purposes. It does not apply to freehold or indigenous land.
This definition links back to the new State-wide regulated vegetation management map (discussed below), which must show the 'vegetation category areas' for the various parts of the State. 'Vegetation category areas' are defined in the new section 20AKA as a category A area, category B area, category C area, category R area or category X area. The definition of category C area in the new section 20AN is as follows:
"A category C area is an area, other than a category A area, category B area, category R area or category X area, shown on the regulated vegetation management map as a category C area that—
- contains high value regrowth vegetation; or
- the chief executive decides to show on the regulated vegetation management map as a category C area.
The chief executive may decide under section 20AI to show an area on the regulated vegetation management map as a category C area even though the vegetation is not high value regrowth vegetation."
Working together, and subject to the exception in section 20AI, the definitions mean that only vegetation on leasehold land for agricultural or grazing purposes that satisfies the definition of high value regrowth vegetation will be mapped as a category C area on the new regulated vegetation management map.
Section 20AI contains a range of exemptions that will allow the Minister to show category C areas on a regulated vegetation management map if, for instance:
- an existing category C area has been subject to clearing under a self-assessable vegetation clearing code, and the clearing was for thinning, clearing or encroachments, controlling for pests and weeds, or necessary environmental clearing;
- there is a Property Map of Assessable Vegetation (PMAV) for the area; or
- the area has been unlawfully cleared.
An amendment is also proposed to the definition of 'regulated regrowth vegetation', currently defined by the Vegetation Management Act as follows:
"1 Regulated regrowth vegetation is vegetation—
- identified on the regrowth vegetation map as high value regrowth vegetation; or
- located within 50m of a watercourse identified on the regrowth vegetation map as a regrowth watercourse; or
- contained in a category C area shown on a PMAV.
2 The exact location of a watercourse mentioned in paragraph 1(b) depends upon the location of the watercourse from time to time."
The Bill replaces that definition with the following:
"regulated regrowth vegetation is vegetation contained in a category C or category R area."
The Bill also inserts a new transitional section (section 111) into the Vegetation Management Act, which will operate so that category C areas (that is, high value regrowth vegetation) identified on a PMAV on freehold land or indigenous land will be taken to be category X areas (areas not assessable, or not regulated, under the vegetation management framework) or as a category R area if they are in a regrowth watercourse area. This amendment ensures the removal or regulations on regrowth vegetation also apply where a PMAV is in place.
Effectively, the amendments will return regulation of high value regrowth clearing to pre-2009 levels.
Self-assessable vegetation clearing codes
Self-assessable vegetation clearing codes provide an opportunity for landholders to undertake vegetation clearing without the need to obtain a development permit.
If the clearing activities comply with the relevant self-assessable vegetation clearing code, the only requirement may be to give notice of the intended clearing to the Department of Natural Resources and Mines.
The amendments proposed will allow the Minister to make self-assessable vegetation clearing codes for relevant purposes, identified as the following:
- Clearing to control pests and weeds
- Fodder harvesting
- Clearing encroachments
- An extractive industry
- Necessary environmental clearing - vegetation clearing that is necessary to restore the ecological and environmental condition of land (for instance, stabilisation works on the banks of watercourses), diverting existing natural channels in a way that replicates the existing form of the natural channels, preparing for the likelihood of a natural disaster and removing contaminants from land
- Clearing for relevant infrastructure activities to which the clearing cannot reasonably be avoided or minimised. The definition of relevant infrastructure activities has been expanded to include not only establishing a necessary fence, firebreak, road or vehicular track, but also maintaining such infrastructure. It has also been broadened to include constructing and maintaining necessary built infrastructure.
- Clearing in category C (high value regrowth vegetation) or category R areas (regrowth watercourse areas)
Self-assessable vegetation clearing codes under the Vegetation Management Act will operate in the same way as self-assessable development under planning schemes. It will be an offence for a person to clear vegetation or conduct a native forest practice under a self-assessable vegetation clearing code without complying with the code.
The State Government has indicated that the codes for routine rural land management activities, such as weed and pest control, fodder harvesting, thinning, managing encroachment and property infrastructure, will be the first to be developed. The code for extractive industries will follow.
State-wide vegetation maps
The Bill proposes a number of changes to vegetation management mapping, including the creation of a new regulated vegetation management map, as well as a vegetation management wetlands map and a vegetation management watercourse map.
The regulated vegetation management map will incorporate the information previously shown on three separate maps – the regional ecosystem map, the remnant vegetation map, and the regrowth vegetation map. The regulated vegetation management map will be accompanied by any relevant PMAVs, which will continue to be used to amend the regulated vegetation management map.
Notably, the regulated vegetation management maps will 'lock in' vegetation category areas for the State. This means all non-assessable vegetation will be maintained as category X (areas not assessable, or not regulated under the vegetation management framework) at the commencement of the Bill. As noted above, the PMAV mechanism will still be available to amend the regulated vegetation management map and expand category X areas.
The same, streamlined approach is adopted in the vegetation management wetlands map and vegetation management watercourse map. Again, the intention is to provide a consolidated map incorporating the layers previously found across a number of maps, tables and databases.
Enforcement, investigation and offence provisions
The final suite of reforms is aimed at returning balance and discretion to enforcement and compliance provisions under the Vegetation Management Act.
Section 67A currently reverses the onus of proof, so that the clearing of vegetation on land in contravention of a vegetation clearing provision is taken to have been done by an occupier of the land in the absence of evidence to the contrary. If the Bill is enacted, section 67A will be removed, marking the return of standard prosecution principles to vegetation clearing offences.
Other notable reforms include reinstating the 'mistake of fact' defence under the Criminal Code by removing section 67B, and reinstating self-incrimination as a reasonable excuse for not providing information or documents required for production under section 51 or 54 of the Vegetation Management Act.
Finally, the Bill removes section 60B sentencing guide from the Vegetation Management Act. Section 60B currently provides a guide to penalty, in the absence of mitigating circumstances, based on each hectare of vegetation unlawfully cleared and the category of that vegetation. The aim of removing section 60B is to provide a more equitable and consistent approach to sentencing.
The Bill has been referred to the State Development, Infrastructure and Industry parliamentary committee for thorough examination and full public consultation. If passed, the amendments are expected to come into effect by the end of 2013.
Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.